The Ill-Fated Union: Constitutional Entrenchment of Rights and the Will Theory from Rousseau to Waldron

2014

This chapter revisits the key theses of Georg’s Jellinek’s Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History [1895]. The objective of this chapter is to expose the ‘umbilical cord’ that linked the notion of ‘constitutional’ rights and the will theory, on one side, and the internal incompatibility of notion of ‘inalienable rights’ with the will theory – reflecting an unabated conflict of the doctrines of parliamentary supremacy and constitutional rights, on another side. These doctrines are part of both ‘continental’ and ‘common law’ traditions. Our intent is also to reflect on the shared groundwork of the doctrine of sovereignty of Hobbes, Aus…

Codification as Nationalization or Denationalization of Law: The Spanish Case in Comparative Perspective

2016

Some scholars have presented codification as a means to both nationalise and denationalise European legal traditions. This seems to be a paradox. On the one hand, the fact that laws needed to be approved by national parliaments and the ius commune - which was somehow regarded as a foreign law - ceased to be in force, gives evidence of how much codification contributed to the nationalisation of law. On the other hand, the fact that national parliaments enacted codes whose content had been highly influenced by foreign codes reveals that codification also contributed to the denationalisation of law. Different perspectives and arguments may lead to completely opposite outcomes. This debate has …

Taking Human Dignity More Humanely

2016

The chapter argues that Kantian autonomy has sometimes been misunderstood, as if Kant would have viewed any choice as lawful, whatever its content might be. It should be noted that Kant followed earlier thinkers who had already found human rights (or natural rights) in the ‘dignity of human nature’. Thus Kant was not the first thinker to connect human rights with dignity, and the latter with human nature. The link between human rights, human nature and the expression ‘dignity’ appeared in the eighteenth century, but earlier than Kant.

The Liberal State and Criminal Law Reform in Spain

2010

Throughout the nineteenth century, European legal science experienced a profound transformation, the consequences of which are still relevant today1. It would be a mistake to suppose, however, that all the legal reforms that took place in Europe in the nineteenth century, originated and developed from nothing. The roots of this process of transformation can already be seen in the sixteenth, seventeenth and especially in the eighteenth century, and the course of the European Enlightenment.

Defense of the Common Law against postbellum American Codification: Reasonable and Fallacious Argumentation

2010

Introduction: Security, Criminal Justice and Human Rights in Countering Terrorism in the Post 9/11 Era

2012

In the aftermath of the 9/11 attacks on New York and Washington, many commentators claimed that the world had changed ‘forever’ with international terrorism constituting one of the defining global security challenges of the twenty-first century. The renewed focus on counter-terrorism law and policy also called into question whether the lessons drawn from previous terrorism emergencies are pertinent to the post-9/11 environment. Indeed, to what extent, if at all, are the principles identified for the liberal democratic response to traditional forms of terrorism applicable to a response to contemporary international terrorism? The historical, political and security implications of 9/11 notwit…

La contribución canónica a la salvaguarda de la paz en la Edad Media: el IV Concilio de Letrán (1215)

2016

El presente artículo analiza –como reza su propio título– la contribución canónica a la salvaguarda de la paz en la Edad Media, prestando particular atención al IV Concilio de Letrán (1215). El objetivo del Derecho medieval consistía en la promoción del orden y la paz social, pero ésta se fundaba en la justicia y la verdad. Todo atentado que revistiera un mínimo de gravedad contra estos dos pilares (justicia y verdad) era objeto de respuesta inmediata por el Derecho medieval en general, y por su ordenamiento penal en particular. Aunque ambos Derechos penales –tanto el secular como el canónico– tiraban, en buena medida, hacia la misma dirección, contando con normas jurídicas y jurisdicciones…

The decline and displacement of custom in early modern Spain

2019

Summary This article aims to describe the reasons for the decline of customary law in the early modern era. Confining the discussion to a limited geographical setting – the Iberian Peninsula – the arguments I used might be easily applied to other European jurisdictions. Part I presents an explanation of the predominance of custom in the medieval Spanish legal traditions. Part II describes the general features of the law in the early modern era, since they contributed – to a greater or lesser degree – to the demise of custom. Part III focuses more specifically on the theoretical and practical reasons for the decline and displacement of custom in early modern Spain. Part IV describes the cons…

The Role of Nature in the Secularization of Criminal Law in Europe (17th–19th Centuries)

2020

Some authors have argued that enlightenment authors endorsed a social contract that was not compatible with the existence of laws of nature or a moral foundation for criminal law, while nineteenth-century liberal criminal lawyers founded criminal law upon a natural law theory, based on divine commands. This chapter demonstrates on the contrary that enlightenment authors did not necessarily make a sharp distinction between morality and criminal law, nor did 19th-century criminal lawyers adopted a conception of criminal law that was too heavily dependent on morality, as it was defended by medieval and early-modern-age scholars. The traditional dichotomy between enlightened thinkers and tradit…

Criminal Law and Morality Revisited: Interdisciplinary Perspectives

2020

The relationship between morality and criminal law must constantly evolve to meet the needs of changing times and circumstances. Social changes and new situations require new answers. This chapter will take the famous ‘Wolfenden Report’ (1957) as a starting point for reviewing the interaction of criminal law and morality, in the context of the broader relationship between politics, law and morality. Moral laws and civil laws have different limits and practical purposes, as is made clear in the writings of Aristotle, Thomas Aquinas and Spanish scholastics such as Francisco de Vitoria, Domingo de Soto and Francisco Suarez. Modern philosophers such as Descartes, Hobbes, Rousseau, Kant, and Mil…

The State Power and the Limits of the Principle of Sovereignty: An Historical Approach

2012

This chapter explores the notion of sovereignty and the limits of state power in the framework of criminal justice. It is not an easy enterprise to counter terrorism while respecting the rule of law and guaranteeing the security of citizens to the maximum extent possible without violating their fundamental rights. Theoretically, modern constitutionalism emerged to protect citizens from political abuses of power. In practice, however, fundamental rights are not always fully respected since the state is often tempted to exercise its power beyond legal boundaries. To limit the power of the state means to limit its sovereignty. Otherwise, the abuses of power by the state become inevitable. Surp…

The Myth of French Influence Over Spanish Codification: The General Part of the Criminal Codes of 1822 and 1848

2018

The chapter aims to explore the scope of the foreign influences, that of the French in particular, in the criminal codes of 1822 and 1848/50. In doing so, the author departs from the views of some 19th century criminal lawyers who, like J. F. Pacheco, stated that in the old criminal laws “nothing was worthy of respect, or conservation” and “there was only one legitimate and viable system, the system of codification, the system of absolute change,” and recognizing that drafters were fully acquainted with the case of France, a jurisdiction that managed to turn its old laws—including the criminal ones—into modern codes (1804–1811). The author briefly presents the status quaestionis of the dich…

Tradition and Foreign Influences in the 19th Century Codification of Criminal Law: Dispelling the Myth of the Pervasive French Influence in Europe an…

2018

Any civil law student knows that most of provisions in any European or Latin American civil code derive from Roman law, that they were the outcome of a long and gradual scholarly elaboration extending from 12th century glossators to the natural lawyers of the 18th century. However, there is no such consensus about criminal law. The civil law tradition has doubtlessly committed more effort to the scholarly development of private law institutions than to those of public law, privileging civil law over criminal law. The main consequences of this fact are twofold: (i) 19th century criminal jurisprudence is sometimes presented as if had arisen out of the blue, or as if institutions contained in …

Vulnerability and Human Dignity in the Age of Rights

2016

The chapter emphasizes the fragility of human condition and the need for political powers and laws that pursue the protection of all individuals.

Was the French Civil Code 'the Model' of the Spanish One? An Approach to the Uniqueness of the Spanish Civil Code

2018

Continental codes have been presented, following in the French model's footsteps, as a determining technique to achieve legal unification and legal positivism. From this perspective, codes would not be compatible with non-legal sources (custom, judicial precedent, legal doctrine) and with legal diversity. Looking at the Spanish case one comes to the conclusion that these ideas are myths or, at least, are not entirely true. They may be true for the French case or even for other European jurisdictions, but they failed when applied to Spain. This may explain why non-Spanish legal historians and comparative lawyers seem to find it difficult to understand the Codification of Civil law in Spain. …